Citation Nr: 1639224
Decision Date: 09/30/16 Archive Date: 10/13/16
DOCKET NO. 12-28 234 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for a right foot condition.
2. Entitlement to non-service connected pension benefits.
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
S. Spitzer, Associate Counsel
INTRODUCTION
The Veteran served on active duty from October 22, 1975 to March 5, 1976 and from September 7, 1977 to October 3, 1977.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2011 and June 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).
In his October 2012 and August 2014 substantive appeals, the Veteran requested a Board hearing before a Veterans Law Judge but withdrew those requests in December 2014. Despite the withdrawal, the Veteran was scheduled for a hearing in June 2016 and was notified of this in a May 2016 letter. The Veteran did not appear for the hearing. His hearing requests are deemed withdrawn and no other request for a hearing remains pending.
The issue entitlement to service connection for a right foot condition is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDING OF FACT
The Veteran served in the United States Army from October 22, 1975 to March 5, 1976 and in the United States Air Force from September 7, 1977 to October 3, 1977; his service was not during a period of war.
CONCLUSION OF LAW
Basic eligibility for entitlement to pension benefits is precluded by law. 38 U.S.C.A. § 1521 (West 2014); 38 C.F.R. § 3.3 (2015).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran asserts that he is entitled to nonservice-connected pension benefits. The law in this case, however, is dispositive and there is simply no basis for a legal entitlement to such benefits. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
Pension is payable to a veteran who served in the active military, naval, or air service for ninety (90) days or more during a period of war. 38 U.S.C.A. § 1521; 38 C.F.R. § 3.3.
The period of war encompassing the Vietnam conflicted ended on May 7, 1975. 38 U.S.C.A. § 1110. The next period of war began August 2, 1990. The Veteran's service, which as demonstrated by his DD Form 214s lasted from October 22, 1975 to March 5, 1976 and from September 7, 1977 to October 3, 1977, did not occur during a period of war. Notably, the Veteran does not contest the fact that he did not serve during a period of war.
In a case where, as here, the law is dispositive, the claim must be denied because of lack of entitlement under the law. Sabonis, 6 Vet. App. 426 (1994). Because the Veteran did not serve during a period of war, he does not have basic eligibility for VA pension benefits and his claim must be denied. The Board is grateful to the Veteran for his honorable service, and regrets that a more favorable outcome could not be reached.
ORDER
Basic eligibility for entitlement to VA disability pension benefits not having been established, the appeal is denied.
REMAND
Concerning the claim of entitlement to service connection for a right foot condition, the Veteran asserts that he has experienced right foot pain since injuring his foot during basic training at Ft. Dix. He reported that he was treated for his foot injury there and also received treatment at Ft. Polk, where he was hospitalized. He continued to self-medicate after service, and finally underwent hallux valgus correction surgery in 2007.
The Veteran's entrance examination notes pes planus. A November 1975 service treatment record notes recurrent foot pain after a fall from a high point during basic training. A radiographic report noted a possible stress fracture of the calcaneus in its inferior aspect. In January 1976, the Veteran complained of pain in the first metatarsophalangeal joint (MTP) and was treated with hot soaks and orthotic insoles. X-rays were negative for sesamoiditis. In January 1976, the Veteran was put on a profile by the podiatry clinic, and found not to be medically qualified for light duty for seven days due to a painful first MTP joint. He was again put on that profile in February 1976. A February 1976 separation examination noted normal feet but abnormal lower extremities. His DD Form 214 from his first period of service noted that the Veteran had 16 days lost from February 2, 1976 to February 17, 1967 and that he was "unsuitable." The Veteran's feet were found to be normal on the July 1977 report of medical examination for enlistment in the Air Force and he reported no foot trouble on the accompanying medical history report.
Following service, x-rays taken in December 2006 revealed osteoarthritis at the first MTP joint, mild pes cavus configuration, and mild plantar spurring. The Veteran underwent right hallux valgus surgery in October 2007.
The Veteran was afforded a VA examination in June 2011. The examiner noted that x-rays revealed hallux valgus deformity with mild degenerative changes at the first MTP joint, and diagnosed bilateral hallux valgus, right first MTP joint arthrosis, and minimal arthrofibrosis of the right MTP joint as a residual of post-service hallux valgus correction surgery. He opined that the current right foot condition of hallux valgus was not related to service, because while a foot injury could lead to the development of hallux valgus, the fact that the Veteran returned to basic training after the injury makes it unlikely that the injury was sufficiently severe. Additionally, the Veteran did not complain of foot pain again during service.
The Board notes that the VA examiner did not consider the Veteran's continuing reports of foot pain up until his separation from service in February 1976, when his separation examination noted abnormal lower extremities. Furthermore, the examiner did not address the other right foot conditions of record in providing his negative opinion. Therefore, a new VA examination and opinion are warranted.
Additionally, the Board notes that relevant records should be requested. The Veteran reported that he was hospitalized while at Ft. Dix and Ft. Polk, however, no army hospital records are associated with the claims file; the records should be requested. The Veteran's service personnel records should also be requested, along with updated VA treatment records. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).
Accordingly, the case is REMANDED for the following actions:
1. Obtain (1) VA treatment records dating from July 2012 to the present (2) the Veteran's service personnel records, and (3) treatment records for the Veteran from the Army Hospitals at Ft. Dix and Ft. Polk for the time period from October 22, 1975 to March 5, 1976. If any requested records are unavailable, the claims file should be annotated as such and the Veteran and his representative notified of such.
2. After completing the above actions and associating any additional records with the claims file, schedule the Veteran for an examination by a podiatrist. The claims file must be reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted and the results reported. The examiner should provide the following opinions:
a. At the conclusion of the examination, identify all currently diagnosed right foot disorders. In doing so, the examiner should note that the term "current" means occurring at any time during the pendency of the Veteran's claim; i.e., from April 2011 onward. The right foot disorder need not be present at the time of the examination; rather it is sufficient if it previously existed during the pendency of the claim and then resolved prior to the examination.
The Board notes that the record shows past diagnoses of bilateral hallux valgus, right first MTP joint arthrosis, and minimal arthrofibrosis of the right MTP joint residuals of post-service HV correction surgery. The record also shows impressions of mild pes cavus configuration and mild plantar spurring. All of these disorders should be considered and discussed, in addition to any other disorders that may be found. If any specific disorder is ruled out, a complete explanation must be provided. That explanation should include a discussion of all the pertinent evidence of record, to include lay evidence. So, for example, if the examiner were to find that mild plantar spurring is not a current disability, then the explanation should include a discussion of the VA medical records, prior VA examinations, as well as the Veteran's lay statements regarding his condition. If the examiner determines that any prior diagnosis cannot be validated, she or he should explain why.
b. With respect to each diagnosed right foot disorder, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the disorder arose during service or is otherwise related to any incident of service. Please explain why or why not. In providing this opinion, the examiner should comment on the significance, if any, of the Veteran's reports of injuring his right foot during basic training at Ft. Dix, the service treatment records noting a traumatic injury to the right foot in November 1975 and the complaints of first MTP joint pain thereafter, the February 1976 separation examination noting abnormal lower extremities, the report of normal feet on his July 1977 entrance examination for his second period of active duty, and the June 2011 VA examination report.
c. Are the Veteran's flat feet considered a congenital defect? For purposes of answering this question, the examiner is asked to consider a congenital defect to be a condition that is static in nature, such that it is incapable of improvement or deterioration. Alternatively, is the Veteran's flat feet considered a congenital disease? In answering this question, the examiner is asked to consider a congenital disease to be a condition that is progressive in nature, such that it can worsen over time. Rather than being a condition that is present at birth (congenital), can flat feet be a condition that is acquired or that develops during military service? Please explain why or why not.
d. If it is determined that the pre-existing flat feet is a congenital disease (or neither a congenital disease or defect), did the Veteran's flat feet undergo an increase in severity during service? [NOTE: temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient; the underlying condition itself, as contrasted with mere symptoms, must have worsened.]; and
e. If so, was the increase in severity clearly and unmistakably (obviously, undebatably) due to the natural progression of the condition?
A rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.).
3. After completing the requested actions, and any additional action deemed warranted, the AOJ should readjudicate the claim on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
______________________________________________
S. C. KREMBS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs